REENA RAGGI, Circuit Judge, concurring in part and concurring in the judgment:
Like the majority, I conclude that there was no error in sentencing in this case. I join
in the court’s opinion except for the paragraph expressing, in dicta, “considerable doubt
about some aspects of the district court’s approach . . . at least in the abstract” to cumulative
calculation of intended loss in cases involving multiple attempts to commit fraud. Maj. Op.
at [14].
A district court applying Sentencing Guideline 2B1.1 to crimes involving fraud
confronts no easy task. The guideline occupies four pages in the Sentencing Manual,
followed by sixteen pages of application notes. Some of the most challenging issues arise
in connection with the required calculation of “loss.” U.S.S.G. § 2B1.1(b). The fraud
guideline focuses on loss as “a measure of the seriousness of the offense and the defendant’s
relative culpability.” Id. § 2B1.1 cmt. n.18. Loss is not limited to the actual loss sustained
by a victim; rather it is defined as “the greater of actual loss or intended loss.” Id. § 2B1.1(b)
cmt. n.3(A). The guidelines recognize that absolute precision in calculating loss is not
always possible. Thus, a sentencing court “need only make a reasonable estimate of the loss”
sustained or intended in a given case, and “appropriate deference” will be accorded its
determination. Id. § 2B1.1 cmt. n.3(C).
Calculating intended loss in cases where a defendant uses a single financial instrument
or access device in multiple attempts to commit fraud presents particular challenges. As the
majority observes, cumulative loss calculation in some cases of unsuccessful attempts risks
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overstating the seriousness of the crime. On the other hand, ignoring multiple attempts in
calculating intended loss risks understating the seriousness of the offense in a way that is
equally unsatisfactory. The majority brushes aside this concern, stating that multiple attempts
to achieve the same fraudulent objective “may reflect at most the criminal’s level of
competence at the crime attempted.” M aj. Op. at [15]. I see the matter differently. Multiple
attempts demonstrate more than the defendant’s haplessness; they demonstrate his strong
commitment to crime. After all, each of the defendant’s attempts to defraud constitutes a
separate and distinct violation of the law, and an offense committed through multiple
criminal acts may well be deemed more serious for purposes of sentencing than an offense
involving a single infraction of law. To ignore this fact is to send would-be criminals a
message that if at first they do not succeed in their illicit objective, by all means try again
because successive attempts to violate the law are “free.”
Although neither a system of loss calculation that cumulates all attempts nor one that
merges all attempts is wholly satisfactory as a means of measuring the seriousness of a fraud
offense, the former approach, as the starting point for determining intended loss, finds
support in the guidelines. Application Note 3(A)(ii) to U.S.S.G. § 2B1.1 defines intended
loss as “the pecuniary harm that was intended to result from the offense.” The guidelines
define “offense” broadly to mean “the offense of conviction and all relevant conduct under
§ 1B1.3.” U.S.S.G. § 1B1.1 cmt. n.1(H) (emphasis added). Section 1B1.3 in turn defines
“relevant conduct” to include, among other things, “all acts . . . committed . . . by the
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defendant . . . that occurred during the commission of the offense of conviction” or that
“were part of the same course of conduct or common scheme or plan as the offense of
conviction.” Id. § 1B1.3(a)(1)(A), (a)(2). Thus, when a defendant makes multiple attempts
at committing fraud, each attempt is properly considered as a separate act in calculating his
guidelines; therefore, the sum of the losses intended by each such act is the proper quantity
to assess the seriousness of the overall offense. The fact that a defendant could not succeed
in more than one attempt does not preclude cumulative calculation. Application Note
3(A)(ii) states that intended loss “includes intended pecuniary harm that would have been
impossible or unlikely to occur.” In short, where, as in this case, the offense of conviction
involves multiple criminal attempts, the intended loss by each attempt is properly factored
into the guideline calculation, even though the defendant may claim that he would not have
ventured multiple attempts if his first effort had been successful.
To the extent a cumulative calculation of intended loss may overstate the severity of
some multiple attempt offenses, the guidelines anticipate this problem by specifically
authorizing downward departures. See U.S.S.G. § 2B1.1 cmt. n.18(C) (“There may be cases
in which the offense level determined under this guideline substantially overstates the
seriousness of the offense. In such cases, a downward departure may be warranted.”). Such
an approach to sentencing, which factors multiple criminal attempts into the guideline
calculation while still affording the defendant an opportunity to seek a reduced sentence is,
on balance, preferable to one that erases multiple attempts from the guideline calculation and
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places the burden on the prosecution to seek an upward departure.
For these reasons, I do not join in the majority’s expression of concern about the
cumulative loss approach taken by the district court in this case.
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